Weekly Notes: legal news from ICLR – 3 October 2014

This week’s selection of law and injustice from home and abroad includes a Human Rights Act rethink, a peaceful pro-democracy protest movement, a prose appraisal of the best of the Bar and a poetic appraisal of Google’s cack-fisted attempts to implement the Right to Deletion of Dubious Data-links, otherwise known as RTBF.

HRA replacement therapy

The high point of this week’s Tory Party conference in Birmingham (or the low point if you don’t happen to be a right wing fundamentalist or kipper) was the announcement that the Human Rights Act 1998 would be scrapped and replaced by a Bill of Rights. That in itself could well have been no more than a cosmetic exercise, a reclothing of existing legal and treaty obligations in a more acceptably Anglo-Torious garb. As noted in the last Weekly Notes (26 September), this would be wildly-semaphored (as indeed it has been, and tabloidally publicised) but would have limited, if any, legal effect. The requirement of UK courts (under section 2 HRA) to apply Strasbourg jurisprudence, for example, could be recouched in even less binding terms, but the rights billed would remain substantially as provided for in the Convention on which that jurisdiction is based.

But the proposals, once revealed (first by David Allen Green on his Jack of Kent blog), turned out to be more drastic and more clumsy than could be expected from any halfway legally literate drafter (despite the alleged involvement of senior Tory QCs). Given the hasty recent expulsion of former Attorney General Dominic Grieve QC and other legally balanced advisers from the government ranks, the new proposals appear to betray their origin amongst politicians and advisers who prefer to take their cue from the opinionated (but not always correctly informed) popular press and PR pundits.

In brief, the proposals (with comments) are:

“A new British Bill of Rights and Responsibilities that will restore common sense to the application of human rights in the UK”

(It will be interesting to see how “common sense” is construed by the courts, if it appears in the new Act: as the cousin of “Wednesbury reasonableness” (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, CA), or the views of the Man on the Clapham Omnibus (per Sir Richard Henn Collins MR in Mcquire v Western Morning News Co Ltd [1903] 2 KB 100, CA), or perhaps anyone less challenged than the “moron in a hurry” cited by Lord Denning in Newsweek Inc. v British Broadcasting Corp. [1979] RPC 441).

“It will stop terrorists and other serious foreign criminals who pose a threat to our society from using human rights to prevent deportation.”

(Too bad if they face human rights abuses in their own countries, or turn out not to have been a terrorist/criminal/threat in the first place.)

“it will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of society as a whole”.

(This echoes the myth about “Elf ‘n Safety as such”, ie human rights law being used for more and more tabloid news stories and MOJ briefings, with little regard for the true facts of the case.)

“In future Britain’s courts will no longer be required to take into account rulings from the Court in Strasbourg. This will make our Supreme Court the ultimate arbiter of human rights matters in the UK.”

(hmm, be careful what you wish for. You may find the JSCs across the square as turbulent as their unelected counterparts in Strasbourg.)

“Every judgement (sic) [of the European court] against the UK will be treated as advisory and will have to be approved by Parliament if it is to lead to a change in our laws.”

(So Parliament will be involved in the implementation and enforcement of judicial decisions – bang goes the separation of powers. If this applied to Strasbourg court, why not to troublesome Judicial Review decisions of our domestic courts? Like the three the Lord Chancellor has lost in the last fortnight.)

“End the ability of the courts to decide unilaterally to apply Human Rights laws to whole new areas of public life”

(Not sure in what context a court would decide an issue bilaterally. But if areas of public life, new or old, involve humans then those humans presumably retain their rights? )

“Human rights laws … will no longer apply in trivial cases.”

(No idea of the threshold here, but does that mean you won’t get a fair trial if it’s only, say, shoplifting? Or you won’t get free speech if it’s only a tweet or a blog post?)

“People who do not fulfil their responsibilities in society should not be able to claim so-called ‘qualified rights’ in their defence in a court of law.”

(So if you’re a defaulting dad, haven’t paid your child support, you won’t get right to family life under article 8 because that’s qualified by necessity under article 8.2. But what if you can’t afford a lawyer and don’t get legal aid, so can’t argue the case fairly under article 6 (unqualified) and therefore cannot challenge assumption that you haven’t fulfilled your responsibilities in society? It’s like a game of snakes and ladders.)

Predictably enough, there was a chorus of consternation and criticism over this “blue”-print for what looked stupidly like a Strasbourg-free charter of rights applying only to right-thinking members of the marginal voting community.

(Interestingly, the url for this piece suggests that the story was originally going to have a different bent: a-conservative-government-would-not-put-up-with-european-meddling-on-human-rights-rulings-says-justice-secretary. The image on the right now appears near the bottom of the piece, and, if one may say so, could be interpreted as showing the said Justice Secretary having difficulty swallowing a new ruling from Strasbourg.)

The Daily Mail headline today reads: “End of human rights farce”. But actually, the farce is only just beginning. It’s the human rights that could be ending.

And a rather splendid Venn diagram, via the Justice Gap, showing Britain’s place in Europe (but not really), in a special zone of exception with Belarus and Kazakhstan.

Judicial Review strikes (down) again

MOJ makes a mess of mesothelioma claims review

Following his double defeat two weeks ago (see Weekly Notes – 19 Sept) the Lord Chancellor and Secretary of State for Justice lost yet another judicial review case he was defending, this time brought on behalf of the Asbestos Victims Support Groups Forum. The claimants challenged the decision by the defendant Secretary of State for Justice in December 2013 to extend the ambit of sections 44 and 46 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (“LASPO”), which prevent the recovery of success fees and insurance premiums paid by successful claimants from unsuccessful defendants in respect of claims for damages, to apply now in respect of claims for diffuse mesothelioma, a pernicious asbestos-related disease. The sections were already in force in respect of other claims, but by section 48(1) of LASPO were not to be extended to diffuse mesothelioma claims until the Lord Chancellor had

“(a) carried out a review of the likely effect of those sections in relation to such proceedings, and (b) published a report of the conclusions of the review.”

The claimants’ case was that the LC failed to carry out a review sufficient to comply with that provision, and that the claimants had a legitimate expectation that he would.

Giving judgment on 2 October in R (Whitston) v Secretary of State for Justice [2014] EWHC 3044 (Admin), William Davis J upheld that claim. He noted that the way the Lord Chancellor had carried out his review had been by way of a consultation paper, and although section 48 had not stipulated any particular form of review, the way it had been conducted “did not enable a proper review of the likely effect of sections 44 and 46 on mesothelioma claims” (para 33) and, at para 37:

No reasonable Lord Chancellor faced with the duty imposed on him by Section 48 of the Act would have considered that the exercise in fact carried out fulfilled that duty. I do not find that a consultation exercise per se was an inappropriate means of fulfilling the duty. Rather, the nature of this consultation meant that it did not permit the Lord Chancellor to do so.

Adding, at para 41:

“ it is now for the Lord Chancellor to carry out a proper review of the likely effects of the LASPO reforms in whatever manner he concludes will permit him reasonably to achieve the required purpose. “

Welcome back to the new legal term

Michaelmas term began on 1 October and was marked by a ringing endorsement of the English Bar by its chairman, Nicholas Lavender QC, in his editorial in this month’s Counsel Magazine. In particular, he praised its advocacy training, the success of which over the last 20 years or so, thanks in part to the Advocacy Training Council disproves the idea that advocacy is not a skill that can be taught.

While Marshall Hall’s flamboyance may have gone out of fashion, effective cross-examination remains at the heart of our criminal justice system, and there are plenty of effective cross-examiners at the Bar, just as there are those who are unrivalled at presenting cogent legal argument to a judge or making an attractive and winning speech to a jury. The Bar’s international reputation for excellence is a considerable, and well-deserved, asset.”

The value of advocacy – and the risk of not having it – was illustrated by one of the examples given in the Bar Council’s report on LASPO: One Year On, following research on the effects of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (“LASPO”) since it came into force on 1 April 2013. In one case, a mother accused the unrepresented father of raping her, and might well have been believed had the barrister sitting as a recorder not found (in papers received on the day of the hearing) evidence which showed she was lying. Unable to represent himself in court, the father had not drawn this crucial evidence to the court’s attention.

Law in the World

Bahrain

Activist detained for insulting tweets

Exchanges on twitter can be pretty robust, but in a free country you need to threaten to blow up an airport or rape a feminist before the law will step in, let alone twitter itself. Not so in Bahrain, where the authorities have detained Nabeel Rajab, the President of the Bahrain Centre for Human Rights, and director of the Gulf Centre for Human Rights, after summoning him for questioning and investigation for alleged breach of an article of the country’s Penal Code that criminalises “offending government authorities, institutions and agencies”. Nor is he the first human rights activist to find himself the victim of persecution, according to Amnesty International.

Amnesty’s Middle East and North Africa Deputy Director Said Boumedouha said:

“The detention of Nabeel Rajab is yet another serious blow to freedom of expression in Bahrain and entrenches growing attempts by the authorities to muzzle dissenters.

China – Hong Kong

Pro-democracy protests continue, peaceful but threatened

Anyone watching the news this week will have seen the extraordinary sight of hundreds of thousands of peaceful, patient protesters occupying the streets and open spaces of the Central district of Hong Kong island. They are protesting a decision by the mainland ruling Communist Party not to permit free and fair elections in Hong Kong, despite an undertaking in the Basic Law and the handover agreement by which Hong Kong was ceded back to China in 1997. Instead, the CP wants to impose its own candidates in what would amount to a travesty of democracy. But then, for a one-party state that brutally suppressed pro-democracy demonstrations in Tian-an-men Square 25 years ago, ideas of accountability and freedom of choice are simply anathema.

The protesters have withstood the efforts of police in riot gear, using tear gas and pepper spray, to try to disperse them, to no avail. The protesters used umbrellas, swimming goggles and surgical masks to protect themselves and resorted to none of the violence, rioting or looting that mars supposedly peaceful demonstrations in other countries, notably the UK (to our shame). In consequence, this has been nicknamed the Umbrella Revolution.

Human Rights Watch notes that the use, by the police, of force in a way that hasn’t been used even for larger protests in the past represents an escalation which brings into question their independence, as well as that of Leung Chun-ying , the Chief Executive of Hong Kong’s legislative council, whose resignation the protesters have demanded.

The United Nations Basic Principles on the Use of Force and Firearms provide that law enforcement officials may only use force if other means remain ineffective or have no promise of achieving the intended result.

Sophie Richardson, China director of HRW, said:

The protests in Hong Kong should show authorities that a harsh, uncompromising attitude on the issue of democracy provokes a serious backlash. The best way to restore order and popular confidence is to tolerate peaceful protest, and to take meaningful steps towards genuine democracy, as promised.

UPDATE:

Since writing the above, further developments include the first breakout of (non police) violence, apparently spearheaded by Triad gangsters, allegedly put up to it (not clear by whom, but probably in order to foment a “situation” in which police or PLA would be justified in “going in heavy”), in the Mong Kok area on the Kowloon side, which has a higher percentage of mainland Chinese than Hong Kong island, and fewer expats. To this provocation, the demonstrators reacted with impressive determination, defending themselves and their barricades whilst resolutely refusing to offer any unnecessary violence in return.

Over the weekend, a charming story emerged of a couple proposing (and accepting) marriage in the midst of the occupation in Mong Kok, to a chorus of chanting and cheers.

As of Monday morning, it appeared that the density of occupation in Hong Kong round government offices (eg in Admiralty district) had ebbed sufficiently to allow government workers to go to work, and schools / colleges to resume.

India

Chief minister jailed for corruption

Jayaram Jayalalithaa, a 66-year-old film star of more than 100 Tamil films, who had moved into politics and became the leader of the AIADMK party and chief minister of Tamil Nadu, the southern Indian state, was jailed for four years after being found guilty of corruption by a court in Banglaore.

She had amassed a fortune of 530m rupees (£5.3m) and had, apparently, over 10,000 saris, 750 pairs of shoes and 28kg of gold. But her wealth was said to be totally disproportionate to her earnings. After the sentence of imprisonment, coupled with a fine of 1bn rupees, protests erupted and her supporters attacked, for some reason, buses.

Russia

New media law threatens freedom of expression

Amendments to Russia’s media law, aiming to restrict foreign involvement in Russian media, were introduced in the State Duma on 17 September, swiftly adopted on 26th, and endorsed by the Federation Council on 1 October. The new provisions seem part a pattern of restriction on foreign media scrutiny, along with such actions as blocking websites and restricting investment and advertising for any organisations that might be critical of the state’s actions.

This law, if signed into force by the president, will cut foreign investment and threaten diversity and competition in Russia’s media market. The media law amendments are clearly aimed at limiting and controlling what Russians can hear and from whom.

“The Russian government’s obsession to control what is being said about the current crisis in Ukraine and Russia’s role in it is spilling into much broader areas,” Cooper said. “But the millions of Russians who will be denied the fundamental right to information from a source of their choice is a huge price to pay.”

United States

Appeals Court abortion ruling forces Texas clinics to close

A decision of the US Court of Appeals for the Fifth Circuit, New Orleans, on 2 October gave the state of Texas permission to require all abortion clinics in the state to meet the same building, equipment and staffing standards as hospital-style surgical centers. Abortion providers said the stringent standards were unnecessary and costly, but the state arguedthat they improved patient safety.

In the wake of the decision, 13 abortion clinics in Texas were forced to close immediately. The case is part of a long-running battle between Texas lawmakers (Republican dominated legislature) and abortion providers, and this decision is apparently only temporary, pending further hearings.

For Google blocks all kinds of sites
‘Specially for those with copyright
And, you know, this isn’t funny,
When blocking things will make them money

This isn’t just about free speech
No matter how much Google preach
What matters here is really power
Is this truly Google’s hour?

Does Google have complete control
Or do the law courts have a role?
Time will tell – but on the way
Our privacy will have to pay…

And while we’re on the subject of copyright (see antepenultimate stanza)…

The Intellectual Property Office has issued guidance on recent amendments to the law of copyright that have just come into force, which finally recognise, inter alia, the right of UK citizens to duplicate and backup paid-for content to store and enjoy on all their devices. Indeed, it also means that 13 years after the launch of iTunes it is now legal for consumers to populate their libraries with music from their own CDs (though not to make duplicates for wider distribution).

This reverses the rather ludicrous position which previously obtained, whereby it was theoretically illegal to make a party mix tape or car cassette player copy of your favourite waxings, the internal sleeves of which would often bear that irritating cassette-skull logo declaring, in no uncertain terms, that “Home taping is killing music”.

A personal rant now follows. The obvious objection to the HTIKM campaign was that (a) rip-off prices charged by the Music Biz (especially when CDs first came in, which were far cheaper to manufacture than cassettes, but cost double the amount) was doing much more to put off purchases, particularly by young people with tight budgets; and (b) if you copied your friend’s LPs or singles, it wasn’t because you would have bought them yourself, you were just sampling a broader range of delights, some of which might well inspire you to make your own further purchases. In effect, my friends and I ran our own music library, avoiding duplicate purchases in order to broaden our range of listening. How was that going to kill music? Of course I am not nearly so anarchstic these days, being instead pathetically extravagant with downloads and streaming services, not to mention bargain CDs from the dump bin by the door (often duplicating content already paid for, years ago, on scratched and worn-out vinyl).

All this has now put me in the mood for some snap, crackle and pop music (ie analogue recording), so excuse me while I fire up the belt drive turntable and lower the needle into the groove.